Sunday, 17 May 2009

Owning knowledge's shadow. Thoughts after UWA v Gray.

OK, so here’s my hypothesis, after reading UWA v Gray.

Universities want to own knowledge but they only get to own (intellectual) property, because that is the only framework available to them.

Why would they want to own something as abstract as knowledge? Because ownership is a precondition to trade and the trade of knowledge is now perceived to be the university’s business.

The problem is, the trade of knowledge is not what universities were set up to do, so this new mission (such as it is) collides with traditions, structures and in this case, legal framework.

How does UWA v Gray say that? I’m glad you asked, because something had to make it worth my while reading that 591 page monstrosity.

UWA v Gray is a Federal Court judgement deciding that the University of Western Australia had no claim to the intellectual property developed by Dr Gray and others. A lot of complexities contribute to this – which is why the judgement is so long – but what it came down to was that UWA could not (by regulation or any other means) claim ownership over property that was not theirs. They couldn’t do that because there was no necessary expectation that invention was what an academic, and Dr Gray specifically, was appointed to do. An IP policy does no good, because, as Paragraph 90 says “UWA cannot, by regulation, acquire property from its staff members.”

Now, I am not a lawyer and my interest in law and legal history is pretty limited. So for legal analyses, do a google search for UWA v Gray and you’ll see dozens of law firms that have put summaries on their websites.

While UWA v Gray is a 2008 finding, it is full of history. The case tried to unravel the process of UWA’s patent policy and Patent committee, the opinions and uses of them throughout the 1980s; their perceived inadequacies and motives for change; and the development of an IP policy in the mid-1990s as a (belated) response. Since this is heaps more info than most university archives are happy to provide me with, it is a convenient case study of the shift in the 1980s/1990s to IP policies.

And it is messy. I suspect not just at UWA. PVC/DVCs for research were just being invented, and thus, so were their job descriptions. There was a sense that patent/copyright policies weren’t doing the full job but exactly what the full job was remained unclear. The new PVCs and commercialisation cowboys/girls had plenty to do already, often also setting up specifically commercial entities to carry the university’s trade. More recently, online “shops” (at Macquarie and UNSW, for instance) gave at least the veneer of literally selling knowledge products, though it was not really clear what these were.

The legal text claims that IP policies were developed as mode 2 research emerged – as the complex relationships between industry, universities and governments formed that ludicrously over-quoted inflated half-idea of the “triple helix” (which is just intended to put a productive metaphor onto Mode 2). And yet, the most pressing problem universities seemed to be addressing (based on IP policies, AVCC guidelines and UWA v Gray) was how to claim the knowledge that staff produced.

Trading in knowledge is not easy. Knowledge is very difficult to pin down. It is not really alienable – that is, it can’t really be separated from the knower.

The products of knowledge – publications mostly, but other things too: course materials, lectures, tutorial discussions, multimedia, software and inventions – can be a little easier to pin down, but are mere shadows of the knowledge that enables them.

The immediately tradable parts of the products of knowledge are a tiny tiny proportion of the knowledge known in universities. But there remains always the potential for some bit of that knowledge – and which bit is not terribly predictable – to one day, when you least expect it, produce immense wealth.

This is why universities want to own knowledge. But what they got stuck with was owning intellectual property, which is far narrower. What is “worse” if you were concerned about the knowledge trade, when you read UWA v Gray, universities can’t claim knowledge produced in universities if it was not explicitly what the knower was employed to produce. But the thing about research is that what it will do is by definition not yet known! It is very difficult to be specific enough to claim ownership over what a person may or may not know in the future.

And even you could, what you can only claim is the shadow of knowledge, not knowledge itself.

So, universities bluff their way through. Some IP policies claim that the law says employers own all IP of its staff. UWA v Gray shows that this is not the case and in fact, such a claim is a little bit like a university implementing a policy to claim ownership over its staff’s family home. It can’t be done. And if, by hook or by crook, they manage it, they will find it wasn’t what they were after anyway.

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